Embassy Magazine - July 22, 2009
Michelle Collins

Jason Kenney has compromised his position as immigration minister by repeatedly slamming the validity of various refugee claims and blatantly undermining the independence of Canada’s refugee tribunal, legal and immigration experts, including former IRB chairman Peter Showler, are charging.

Over the past several months, Mr. Kenney has publicly declared asylum claims by U.S. war deserters to be “bogus,” accused would-be Mexican refugees of systematically abusing the system, and questioned the legitimacy of refugee claims by Roma from the Czech Republic.

Mr. Kenney has said that the Roma face no state persecution in the Czech Republic here attacks on their communities by radical groups are said to be on the rise in spite of the fact that the Immigration and Refugee Board has approved nearly all such claims. In 2008, 94 per cent of Czech Roma claims were accepted, while in the first six months of 2009, 72 of the 90 cases heard were accepted.

“There are a lot of concerns here,” said Toronto immigration lawyer Max Berger. “The minister has to strike a delicate balance, on the one hand preserving the integrity of our refugee program, and on the other hand not making public pronouncements that could be seen as political interference in the operation of his own refugee board.”

In June, Mr. Kenney referred to a report on the Czech Republic, conducted by IRB researchers, as proof the Czech government was committed to improving the legal and economic opportunities for Roma, and suggested this was evidence that Czech Roma face no real risk.

“If someone comes in and says the police have been beating the crap out of them, the IRB panelists can then go to their report and say, ‘Well, actually, there’s been no evidence of police brutality,’” Mr. Kenney told the Toronto Staron June 24.

The appearance of political interference by the minister has led Roma Canadians to launch a lawsuit against Mr. Kenney and the Immigration and Refugee Board, alleging “institutional biases” against Czech Roma refugees. Lawyer Rocco Galati told the Toronto Starthat the suit will focus on the IRB’s report about Czech Roma, which the community says is discriminatory.

Peter Showler, a former chairman of the IRB and director of the Refugee Forum at the Human Rights Research and Education Centre at the University of Ottawa, said Mr. Kenney has absolutely introduced institutional bias into the refugee board’s decision-making. He said Mr. Kenney’s comments have caused a “significant amount of damage” to individual refugee claimants from Mexico and the Czech Republic, as well as to the judicial process.

“I am not aware of a single previous minister of immigration who has made such remarks, who has intruded on the judicial process in this way; not one,” Mr. Showler said. “This is extraordinary and I think he has overstepped the line, and I think the courts are going to tell him that he’s overstepped the line.”

The Refugee Lawyers’ Association of Ontario has also spoken out against Mr. Kenney’s comments, which they say undermines the IRB’s independence and tarnishes its integrity.

“The Canadian public should be shocked that a minister would interfere so blatantly in the work of an independent body,” Geraldine MacDonald, president of the association, said in a July 13 press release.

Members of the Immigration and Refugee Board are responsible for hearing refugee claims, analyzing the evidence of each case, and ultimately approving or rejecting the claim. The IRB is an independent agency, however its members are appointed by Governor in Council (Cabinet) decisions, based largely on recommendations from the immigration minister.

Experts say Mr. Kenney’s disrespect of the principle of independence is of grave concern because it introduces external political factors into the members’ decision-making process.

“The people who are members of the IRB ultimately depend on the minister of citizenship and immigration, and more generally the government, to keep them in their jobs,” said Audrey Macklin, an associate professor at the University of Toronto’s Faculty of Law. “When the minister pronounces on the validity, or lack thereof, of refugee claimants from any country without having heard the particular case and knowing the individual circumstances, there is the risk that individual decision makers whose jobs ultimately depend on the minister’s decision to appoint and reappoint them, will be unduly influenced. They might be fearful when their time comes up for reappointment that he will examine their acceptance rates from the countries where he has deemed refugee claimants to be bogus, and penalize them.”

The perception of such inappropriate control by Mr. Kenney has become so prevalent that numerous immigration lawyers are turning to the courts for recourse. Mr. Berger said he and a number of other lawyers in Toronto now have applications in federal court alleging “an apprehension of bias” regarding Czech refugee claims.

“You have board members who are called upon to decide these refugee claims, and at the same time these board members are looking to this minister for reappointment at the board,” Mr. Berger said.

Janet Dench, executive director of the Canadian Council for Refugees, said it is inappropriate for the immigration minister to publicly prejudge cases and that in doing so he has disrespected the proper divisions of responsibilities.

“It’s extraordinary how often you hear public figures say ‘I can’t comment on this because it’s before a tribunal,’ somehow Jason Kenney doesn’t seem to be applying that rule to the cases of refugees,” Ms. Dench said.

By publicly stating his personal opinions on what he thinks the outcome of determinations should be puts the IRB into “a very vulnerable position” and slights refugees, she said.

“It just treats refugees of being so undeserving of even the most basic consideration… like the refugee system is just about trying to deal as quickly as possible with an inconvenience rather than taking seriously the rights of refugees,” Ms. Dench said.

Errol Mendes, a professor of international law at the University of Ottawa, said Mr. Kenney’s “blanket statements” about claimants from other countries, such as Mexico and the Czech Republic, are dangerous. As the most senior person in the immigration department, the onus is on Mr. Kenney to respect the 1951 Convention relating to the Status of Refugees, Mr. Mendes said, adding there is nothing in the ’51 convention which suggests claimants from democratic countries, such as the Czech Republic and Mexico, are not entitled to a fair hearing.

“Given all that, at least in terms of the spirit of the rule of law, I think he has abdicated his responsibility to be a responsible minister of immigration and citizenship,” Mr. Mendes said. “And we could add to that multiculturalism too, because this certainly goes against the spirit of multiculturalism, to basically stereotype entire peoples as potential fraudsters.”

“I think the minister has to be very careful and balanced in his comments,” Mr. Bevilacqua said. “He must of course state his opinion about Canada’s immigration system because that is his job, but he has to do it in a manner that doesn’t unduly influence people’s decisions on the cases that they’re dealing with.”

Breaking the System, Blaming the Refugees

Particularly frustrating for many close observers has been the lack of government attention to addressing the refugee problem systematically, rather than politically.

Mr. Showler, in two recent op-eds for the Ottawa Citizen, has outlined the challenges facing the Immigration and Refugee Board. He lambasted the government for neglecting to avert the present crisis, which led to Mr. Kenney imposing visa requirements on all citizens of Mexico and the Czech Republic, and subsequently calling for an overhaul of Canada’s refugee system.

“In addition to creating significant delays and spiralling new costs in our refugee programme, the sheer volume of these claims is undermining our ability to help people fleeing real persecution,” Mr. Kenney said in announcing visas for Mexico and the Czech Republic on July 13. “All too often, people who really need Canada’s protection find themselves in a long line, waiting for months and sometimes years to have their claims heard. This is unacceptable.”

Just four years ago however, Mr. Showler points out that the IRB had an inventory of approximately 21,000 claims, with a capacity to decide 25,000 claims annually. But because the government has failed to reappoint experienced members and fill vacancies left by departed members, the IRB is now saddled with a backlog that exceeds 65,000 claims.

Indeed, the IRB was functioning, Ms. Macklin agreed, until the government starved it of its main resource decision makers.

“[The government] manufactured the backlog,” Ms. Macklin said. “You have a situation where the government took a system that was functioning, broke it, blamed asylum seekers for breaking it, and is now using that as an excuse to dismantle the entire system. There’s something pernicious about that, and disingenuous at best.”

Without enough members, the processing time has slowed omething the Mexican government points to as the root cause of the multiplying number of cases from Mexico in recent years. In 2008, more than 9,400 Mexicans filed refugee claims in Canada, making it the number one source country for refugee claims.

“Organizations have taken advantage of Canadian response times to assess refugee claims, where excessive delays have become appealing in the filing of illegitimate cases,” the Mexican government said in a statement on July 13.

Acknowledging that there are indeed fraudulent claims made, Mr. Berger also pointed to systematic problems as the cause. Effectively addressing such problems, he said, is a viable alternative to Mr. Kenney’s drastic measure of imposing visas.

“The reason bogus claims come to Canada is because they know that after their refugee claims is refused…they know that they will be able to stay in Canada for seven, eight, 10 years, until the immigration department gets around to removing them,” Mr. Berger said. “Now if the minister took the removal process seriously and removed claimants properly after their appeals have concluded, then these people wouldn’t be coming here in the first place and we wouldn’t have come to this position.”